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Income Tax Appellate Tribunal, MUMBAI BENCH “G”, MUMBAI
Before: SHRI C.N. PRASAD, HONBLE & SHRI N.K. PRADHAN, HONBLESmt Sunitha R. Ashok
O R D E R PER C.N. PRASAD 1. This appeal is filed by the Revenue against the order of the Learned Commissioner of Income Tax (Appeals) – 30 Mumbai dated 16.05.2016 for the Assessment Year 2012-13.
The Revenue in its appeal has raised the following grounds: - “
1. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in granting relief in respect of claim of deduction u/s 54F of the I. T. Act, 1961 of ₹.96,97,000/- without appreciating that the assessee had ownership of more than one residential property when such claim of u/s 54F was made.
2. "On the facts and in the circumstance of the case and in law, the Ld. CIT(A)erred in not appreciating that the assessee did not seek probate of her (A.Y: 2012-13) Smt Sunitha R. Ashok father's will in respect of the Nigdi property even till the filing of her return of income which was nearly two years after his death and therefore the benefit of ownership of property cannot continue to rest indefinitely with the executor of the will and consequently the property would have to be considered as being the assessee's property. 3. "On the facts and in the circumstance of the case and in law, the Ld.CIT(A) erred in not considering that effectively the Hadapsar Property was joint only in name because the assessee had paid major consideration for purchase and also showed the entire rental income in her return of income whereby it should be considered as being in assessee's ownership.
4. Without prejudice to the above, on the facts and circumstances of the case and in law the Ld.CIT(A) erred in not considering the decision of Hon'ble ITAT, Hyderabad 'A' Bench, Hyderabad in (The ITO Vs Ms. Apsara Bhavana Sai for A. Y. 2008-09) wherein it is decided that if assessee is jointly owning more than one property, then the assessee is not entitled for deduction u/s 54F of the Act.
5. The appellant prays that the order of the Learned CIT(A) on the above grounds be set side and that of the AO be restored.
6. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary."
Briefly stated the facts are that, during the course of assessment proceedings, AO noticed that the assessee has shown Long Term Capital Gains of ₹.96,97,000/-, being 50% of share of capital gain on sale of land, which was inherited from her father by her along with her sister, , through a Will. The Capital Gains was claimed as exempt u/s 54F of the Act, on account of purchase of a flat. AO verified the contents of the Will and found that apart from the property sold, there is another residential property mentioned in the Will which was bequeathed on the assesse.
Another property was stated to be owned by her jointly with her husband and major portion of the consideration for the property was born by the assessee. Assessee, also shown property income on this property, in her return of income filed. As the assessee is the owner of two properties and (A.Y: 2012-13) Smt Sunitha R. Ashok also showing house property income, AO denied the exemption claimed u/s 54F of the Act on the Capital gains earned on the sale of land inherited through will from father.
On appeal the Ld.CIT(A) allowed the claim of the assessee holding that since the Will of assessee’s father was not probated, assessee is not a legal owner of the property and in the alternative even if assessee is treated as legal owner, since the property is held by the assessee jointly with her husband it will not amount to holding second residential house for denying the relief u/s. 54F of the Act.
Ld. DR strongly supported the orders of the Assessing Officer in denying the exemption u/s. 54F of the Act for the assessee as according to the Assessing Officer the assessee owns second residential house property as on the date of purchase of the property on which exemption was claimed. Ld. DR vehemently submitted that the Assessing Officer is right in denying the exemption u/s. 54F of the Act, since the assessee owns second residential house property jointly with her husband. He also contended that even though the will was not probated assessee is a legal owner and is in possession of the property and rent from the property was paid to her mother and therefore there is no denying fact that the legal ownership over the said property vests with the assessee itself and she could enforce the said ownership if any such need arises at any time.
(A.Y: 2012-13) Smt Sunitha R. Ashok 6. Ld. Counsel for the assessee strongly supported the order of the Ld.CIT(A). Ld. Counsel for the assessee further reiterated the submissions made before the lower authorities. The Ld. Counsel for the assessee relied on the following case laws: - 1) Applicability of provisions of section 168(1) (a) CIT v. Usha D. Shah [127 ITR 850, 854 (Bom)] (b) Dilip Loyalka v. ACIT in dated 4th December, 2016 (Kol) 2) Share in a house per se is not a single ownership. (a) ITO v. Shri Rasiklal N. Satra [280 ITR 240 (Mum)(Trib.)] (b) Dr. Smt. P. K. Vasanti Rangrajan v. CIT [209 Taxman 628 (Mad.)] (c) Balwantram U. Chima v. ITO 72 TTJ (Ahm) (d) Amit Gupta v. ACIT [43 ITR Trib. 427 (Del] 7. We have heard the rival submissions, perused the orders of the authorities below and the case laws relied on. The only question to be decided in this case is, whether assessee is the legal owner of the property which was inherited through Will in the absence of the Will probated in any court of law and whether the assessee is holding second residential property when she was a joint owner along with her husband for the purpose of claiming exemption u/s. 54F of the Act. This aspect of the matter has been elaborately dealt with the Ld.CIT(A) with reference to the submissions, averments in the Assessment Order and the case laws relied on by the assessee and following various decisions, it has been held that assessee owns only one residential property as on the date of transfer of the property and the other property which is jointly owned with her husband will not come in the way for the purpose of claiming exemption u/s. 54F of the Act observing as under:
(A.Y: 2012-13) Smt Sunitha R. Ashok
“6.3. I have carefully considered the grounds of appeal and the rival contentions and the material on record. The basic issue in this appeal is that whether the appellant is eligible to claim exemption under section 54F of the Act. It would, therefore, be relevant to reproduce the relevant portions of section 54F: "Subject to section 54F of the provisions of sub-section (4), where in the case of an assessee being an individual or a Hindu undivided family, the capital gain arises from the transfer of any long-term capital asset, not being a residential house (hereafter in this section referred to as the original asset), and the assessee has, within a period of one year before or two years after the date on which the transfer took place purchased, or has within a period of three years after that date [constructed, one residential house in India] (hereafter in this section referred to as the new asset), the capital gain shall be dealt with in accordance with the following provisions of this section, that is to say, - (a) if the cost of the new asset is not less than the net consideration in respect of the original asset, the whole of such capital gain shall not be charged under section 45; (b) if the cost of the new asset is less than the net consideration in respect of the original asset, so much of the capital gain as bears to the whole of the capital gain the same proportion as the cost of the new asset bears to the net consideration, shall not be charged under section 45; Provided that nothing contained in this sub-section shall apply where -the assessee, - owns more than one residential house, other than the new asset, on the date of transfer of the original asset; or purchases any residential house, other than the new asset, within a period of one year after the date of transfer of the original asset; or constructs any residential house, other than the new asset, within a period of three years after the date of transfer of the original asset; and (a) the income from such residential house, other than the one residential owned on the date of transfer of the original asset, is chargeable under the head "Income from House Property". 6.4 A plain reading of proviso 54F (a)(i) makes it amply clear that the assessee should not OWN more than one residential house on the date of transfer of the original asset. In view of the same, the issue to be decided is whether the appellant owns more than one property on the date of transfer of original asset, to deny the exemption u/s 54F of the Act. AO contends that as per the will, the appellant received the ownership of residential property of her deceased father whereas the appellant argues that the letters of administration/succession certificate is not obtained so far of the estate and the same is managed by her mother who is declaring the property income in her return, on the said property. Section 168(1) of the Income-tax Act clearly states that till the administration of the estate is complete, the income of the estate of the deceased person shall be charged in the hands of the, executor. Sub-section (3) makes it clear that the executor will
(A.Y: 2012-13) Smt Sunitha R. Ashok continue to be assessed until the estate is distributed among the beneficiaries according to their severed interest. In the case in question, the father of the deceased Shri N.G.B. Nair expired on 4th November, 2010 leaving a Will dated 13th November, 2000. No Probate / Letters of Administration have been taken for the reasons stated in the submissions, in respect of the estate of the deceased father. In terms of section 168(1), the income of the estate can only be assessed in the hands of the executors of the estate and not in the hands of the legatees. It has been held by the Kolkata Tribunal in the case of Dilip Loyalka v. Asstt. CIT (ITA No. 536/Kol/2013) relying on the decision of the Supreme Court in the case of Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose, 1962 AIR SC 1471 that where a Will under which the assessee was entitled to house property was not probated, since the assessee was not the owner of the house property, income cannot be assessed in the hands of the assessee. Similar facts exist in case of the appellant. Although the appellant is a legatee under the Will of her late father since neither Letters of Administration / Probate have not been taken, she cannot be considered as an owner of the second house being property constructed on No. 385 situated on Sector No. 25 at Nigdi, Pune known as "Uppasana". Hence,the appellant is entitled to relief under section 54F of the Income-tax Act since she is not the legal owner of the second house. 6.5 Even for a while the appellant is considered as the owner of the property, the other property at Laburnum park which is owned and property income is declared in her return of income is held jointly by the appellant along with her husband. So the appellant cannot be considered as the owner of the second property within the meaning of section 54F of the Act. 6.6. In the case of Dr. Smt. P.K. Vasanthi Rangarajan vs CIT, Chennai, [2012] 209 Taxman.com 299 (Mad.), the Court has held that, if the assesse held a property jointly with her husband and transferred another property owned individually, joint ownership of a property could not be held to stand in her way of claiming exemption. The relevant portion of the order is reproduced as under: '16. As far as the present case is concerned, the purchase of the property was by individual in her own name and the property held by her as on the date of transfer, stood in the joint names of the assesses and her husband. A reading of section 54F dearly points out that the holding of the residential house as on the date of transfer has relevance to the status of the assesse as an individual or HUF. On the admitted fact that the assesse herein, as an individual as on the date of transfer, we have no hesitation in accepting the case of the assesse, thereby allowing the appeal.' 6.7 Hon'ble ITAT, Delhi ‘A’ Bench in the case of Amit Gupta vs. ACIT [2015] 43 ITR (Trib.) 427 (Delhi) also held that the assesse did not exclusively own the second property in his name but had only owned fifty per cent jointly with SA. When the assesse did not own the residential house exclusively in his name and was the holder of a 50 per cent share, the joint ownership of the property would not stand in the way of his claiming exemption under section 54 of the Act. Hence the assesse was entitled to exemption under section 54F of the Act. 6.8 In the present case also the appellant owns the property at Laburnum park along with her husband and not owns it exclusively. In view of the same even if the property though not received to her as on the date, but still treated as the owner as per the will, she is still having only one property as on the date of the transfer of property, since the other property is jointly owned and she is not the exclusive (A.Y: 2012-13) Smt Sunitha R. Ashok owner. In view of the same it is held that the appellant is eligible for deduction of ₹.96,97,000/- claimed under section 54F of the Act. Appellant succeeds on Ground No.1 of the appeal which is treated as allowed.”
On a careful reading of the Ld.CIT(A) order and the findings thereon, we do not find any valid reason to interfere with the decision and findings of the Ld.CIT(A) in holding that the assessee is entitled for exemption u/s. 54F of the Act. Hence we sustain the order of the Ld.CIT(A) and reject the grounds raised by the Revenue.
In the result, appeal of the Revenue is dismissed.